Attorney General for New South Wales v MM (a pseudonym) (bht Ramjan) (Final)

1. [1]

   HIS HONOUR: By a summons filed on 16 May 2025, the Attorney General for New South Wales (the plaintiff) sought interim and final orders pursuant to Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). As a forensic patient, the defendant is a “person under a legal incapacity”: Civil Procedure Act 2005 (NSW) s 3; thus, pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), the appointment of a tutor is required to “carry on proceedings”. Accordingly, the defendant appeared by a person who was appointed to be his tutor, Barbara Ramjam. The defendant is identified in these proceedings by the pseudonym “MM”, pursuant to an order made by Yehia J on 22 May 2025 to that effect.

2. [2]

   Interim orders were made by me on 31 July 2025: Attorney General of New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary) [2025] NSWSC 941 (the preliminary judgment). Pursuant to ss 130 and 131 of the Act, the defendant was made subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his previous extension order on 16 August 2025, for a period of three months, which expired on Sunday 16 November.

3. [3]

   The defendant did not oppose that order and reserved his position in respect of the final order sought, which was for an extension of his status as a forensic patient (an extension order) for a period of 12 months from the date of the order. That order was sought pursuant to ss 121, 127(1)(a) and 128 of the Act.

4. [4]

   I ordered that two forensic experts be appointed pursuant to s 126(5) of the Act, and that their reports be furnished to the Court. Reports have been received from Dr Carollyne Youssef, who is a Clinical and Forensic Psychologist, dated 7 September 2025, and from Dr Gordon Elliott, who is a Forensic Psychiatrist, dated 2 September 2025.

5. [5]

   The final hearing, at which the defendant opposed the making of an extension order, occurred on 7 November 2025. Drs Youssef and Elliott were examined as to their opinions in their reports. On Friday 14 November 2025, I made the final order sought by the plaintiff. These are my reasons for doing so.

Background to the application

1. [6]

   At the time of the hearing, the defendant was subject to an extended order made by Dhanji J for a period of 12 months that expired on 16 November 2025: Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030 (the 2024 final hearing).

2. [7]

   A joint statement of agreed facts (the agreed facts) was tendered, in accordance with cl 26(i) of the Supreme Court Practice Note SC CL 12. The following is a summary of the agreed facts absent the summaries of the recent reports, with additional facts taken from some of the other material before the Court.

3. [8]

   The defendant is a 57 year old Aboriginal man who resides in a North-Western New South Wales town in a property leased from a community housing provider. Pursuant to a condition imposed by the Mental Health Review Tribunal (the Tribunal), the defendant receives services funded by the National Disability Insurance Scheme (NDIS). His current NDIS plan is valid until 22 May 2026.

4. [9]

   The defendant has an extensive criminal history dating back to 1984 when he was aged 16. Other than the index offence, the matters of violence are relatively minor, although there is a constant theme of the abuse of alcohol and violence directed against partners, to which I will return at the end of this judgment.

5. [10]

   His first matter involving violence was an assault (s 61 of the Crimes Act 1900 (NSW)) in 1995, when he was aged 26. Other entries are for further assaults and an assault occasioning actual bodily harm, contravention of Apprehended Domestic Violence Orders (ADVO), destroying or damaging property, stalk/intimidate, stealing offences and drug offences. The defendant has a poor history of compliance with court orders, including breaching a recognizance order in 2000 and conditions of good behaviour bonds in 2002, 2005 and 2018.

6. [11]

   As to offences committed while subject to his current extension order, on 11 February 2025, the defendant was charged with two offences that were committed on 21 January 2025, namely, driving a motor vehicle while his licence was suspended (first offence), and driving a motor vehicle while an illicit drug was present in his blood (first offence). The drug in question was methylamphetamine (the January 2025 offence). On 29 July 2025, at Tamworth Local Court, the defendant was dealt with by way of a finding of a conviction with no other penalty being imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

7. [12]

   On 8 August 2025, the defendant was charged with driving a motor vehicle while disqualified (prior offence), which has not been finalised.

8. [13]

   On 28 May 2020, the defendant was charged with aggravated sexual assault of a person under his authority, contrary to s 61J(1) of the Crimes Act (the index offence). The allegation, briefly stated, was that the defendant’s 16-year-old stepdaughter stayed the night at his house on 27 May 2020. She woke in the early hours of 28 May 2020 to the defendant having penile-vaginal intercourse with her.

9. [14]

   The defendant was found unfit to be tried. A special hearing took place on 1 December 2021 before her Honour Trail DCJ in which the defendant maintained that he was drunk at the time and denied that he penetrated the complainant’s vagina. Her Honour Trail DCJ returned a qualified finding of guilt on the limited evidence available, and fixed a limiting term of 4 years, commencing on 28 May 2020, which was the date that he was remanded in custody, and expiring on 27 May 2024.

10. [15]

    In her remarks, her Honour noted that the defendant was intoxicated at the time he committed the offence and he said that he did not recall it. Her Honour found the offence was opportunistic and accepted that the defendant was genuinely remorseful (although he maintained his innocence) and that the offence had impacted on his relationships with his family generally. Her Honour applied the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 in formulating sentence in view of evidence of childhood deprivation.

11. [16]

    The defendant experienced “movement within, and between, correctional centres”, primarily due to behavioural concerns including him bullying and intimidating other inmates, although no institutional or disciplinary breaches were incurred by him during his detention in prison.

12. [17]

    On 3 November 2023, the Tribunal ordered the defendant’s conditional release from custody. He was released, pursuant to the order, on 8 November 2023.

13. [18]

    The conditions of the defendant’s release from detention were: that he reside with his mother in the town where he presently resides; that he accepted Mr Glenn Williams of the Community Safety Program (the CSP) as his case manager; that he attended the Drug and Alcohol program run by the local Aboriginal Medical Service and Centacare Men’s Behavioural Change Program (the Centacare program); that he abstain from using illegal drugs and alcohol; and that he submit to weekly testing to detect the use of alcohol.

14. [19]

    On 12 February 2024, the frequency of alcohol testing was varied by the Tribunal from weekly testing to only when it was requested by his case manager. No alcohol has been detected from this testing. In early August 2024, the Tribunal approved him moving from his mother’s residence into one leased with a community housing provider.

15. [20]

    Dhanji J made favourable findings of fact as to the defendant’s determination to address his criminogenic factors, in particular, his past use of alcohol, and his progress generally since his release from custody. His Honour expressed concern that the defendant had not had the benefit of therapeutic psychological services that previously had been recommended to address his drug and alcohol use and his childhood trauma.

16. [21]

    On 16 April 2025, a review conducted by the Tribunal noted that the defendant was not complying with a condition that he meet with his case manager face to face at least once a month. The Tribunal found that the defendant was disengaged during the hearing and seemed to be falling asleep. A further review took place on 7 May 2025. His conditions were amended, such that: in-person contact with his case manager would be “twice within a six-month period”; he would have contact (whether face to face or by video) with his case manager at least once a month; and he would have weekly contact with his case manager by any means.

17. [22]

    The Tribunal declined to take action following the January 2025 offence, taking into account that his case manager had observed that the defendant “has displayed no behaviours of concern or an increase in level of risk” between the time of the offending and its deliberation on 27 June 2025.

18. [23]

    The defendant has had a relationship since his limitation term was extended. He told Dr Elliott that he is presently not in a relationship, although he told Dr Youssef that he is. The agreed facts also note that he has been doing volunteer lawn-mowing and gardening for elderly members of his community and that he has been participating in various skill and therapy programs.

19. [24]

    In October 2024, the Centacare program refused admission to the defendant due to “his consistent denial of violence, high level of resistance and lack of accountability”, and because he “does not seem to have the capacity nor the willingness to undertake the content or group work … require[d]”. In April 2025, he told his case manager that he was “not ready” to speak to a psychologist about his childhood trauma history. The agreed facts refer to concerns that were expressed by the director of the defendant’s NDIS provider to the defendant’s case manager in December 2024 and January 2025, which the defendant does not admit:

20. [25]

    The defendant has since changed his NDIS provider. The new service commenced on 26 June 2025.

A risk assessment report

1. [26]

   Dr Sathish Dayalan, Forensic Psychiatrist, assessed the defendant via audio video link (AVL) on 16 December 2024 and provided a risk assessment report dated 13 January 2025. Dr Dayalan previously assessed the defendant in 2023. Dr Dayalan observed the defendant to be irritable; he refused to answer questions about his current sexual functioning or about a wound he was observed to have to his arm and became angry when Dr Dayalan attempted to explore psychotic symptoms with him. He told Dr Dayalan that he did not believe that he suffered from a mental health condition and did not wish to engage in treatment or rehabilitation.

2. [27]

   Dr Dayalan noted in his report that the disability support worker who accompanied the defendant at the time of the assessment told him that the defendant “smelt of alcohol”. Dr Dayalan added that the defendant was falling asleep during the assessment. These matters are not included in the agreed facts, and therefore I assume that they are contested by the defendant.

3. [28]

   Dr Dayalan was of the view that the defendant’s intellectual capacities were in the extremely low range. Deficits in memory and executive functioning have contributed to impairment of his psychosocial functioning.

4. [29]

   Adverse experiences and trauma experienced by the defendant in his childhood have adversely impacted on his personality development and contributed to a propensity for emotional and behavioural dysregulation. Dr Dayalan was of the opinion that the defendant exhibited traits of borderline personality disorder and that he was predisposed to anxiety and depressive disorders which he “could have minimised … given his intent to present as mentally well”. He had a mild Neurocognitive Disorder due to substance use, consistently with the diagnostic criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5 (DSM-V), and an Alcohol Use Disorder which was chronic in nature. It was unclear to Dr Dayalan whether the defendant was in remission or if he had had a recent relapse. Dr Dayalan said:

5. [30]

   Dr Dayalan did not believe that the defendant suffers from a “mental illness” or is a “mentally ill person”, as defined by the Mental Health Act 2007 (NSW). As to the defendant’s level of risk, Dr Dayalan deployed the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3). He noted that in his 2023 report, he found that the defendant had “a high loading of historical risk factors” and that little had changed:

6. [31]

   Dr Dayalan deployed the STABLE 2007 to assess dynamic risk factors. He found:

7. [32]

   Dr Dayalan concluded as follows:

8. [33]

   Of particular significance to the present exercise, Dr Dayalan noted the following:

Relevant legislative provisions

1. [34]

   An application for an extension order is governed by Pt 6 of the Act. Section 124 stipulates that an application may only be made if the forensic patient is subject to a limiting term or an existing extension order and it is made within six months of the expiration of that term or order. I am satisfied that the application was made within six months of the expiration of the extension order made by Dhanji J. There are certain other preliminary matters required by ss 125 and 126. It is not suggested by either party that there is non-compliance with those provisions.

2. [35]

   Section 122 of the Act provides the test by which the Court may make an extension order:

3. [36]

   The expression, “high degree of probability”, denotes a standard of proof that is higher than the civil standard but lower than the criminal standard. The term “unacceptable risk” is a term which should be given its everyday meaning in the context of the provision in which it appears and having regard to the objects of the Act: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [14]. The meaning of “serious harm” may include psychological harm that is more than fear or panic, and physical harm that is more than the minimum threshold for actual bodily harm: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [26].

4. [37]

   Section 127(1) of the Act provides that the Court “may” either make the order sought or dismiss the application, thereby providing that the making of an order is discretionary. Section 127(2) sets out the matters that the Court must take into account in its determination, which are as follows:

5. [38]

   I have earlier referred to the remarks by Traill DCJ in imposing the limiting term on the defendant. I have had regard to the material generally that has been tendered, including selections of daily monitoring reports by the defendant’s supervisors. I now consider the reports of the Court-appointed forensic experts.

6. [39]

   Dr Elliott assessed the defendant in person on 27 August 2025. He found the defendant to be “only partially cooperative” with the assessment. While in the early stages of obtaining a personal history, Dr Elliott noted:

7. [40]

   The defendant said he had “close to thirty children,” including three sets of twins. I note that he has previously claimed to have about 17 children and about 30 children, and one set of twins.

8. [41]

   The defendant made “repeated and insistent statements” that he did not need assistance from the NDIS. Dr Elliott continued:

9. [42]

   Dr Elliott noted other contradictory statements made by the defendant, apparently unwittingly. The defendant offered that he smokes cannabis, “but I don’t do anything else”. Later, he said: “I hardly smoke it. I don’t really need it” and later again, that it helps with his back pain and would like to have medically prescribed cannabis. Dr Elliott described the defendant’s history of alcohol abuse as unreliable, being both “boastful at times and inconsistent at others”.

10. [43]

    The defendant told Dr Elliott that he did his own cooking, cleaning and laundry, but his care coordinator later informed Dr Elliott that NDIS did most of the defendant’s cleaning and other daily living activities. In evidence, Dr Elliott said that material subsequently made available to him suggested that the defendant was “perhaps a little bit more independent” than he had thought.

11. [44]

    The defendant told Dr Elliott that he avoids his family when they are drinking alcohol and insisted that he was able to remain abstinent. He claimed that he was breathalysed up to two to three times a week for alcohol consumption by his “probation and parole officer”. When asked when he last had a drink of alcohol, he said: “well over twelve and a half, I think it’s since 2024. It does get me down when people say I’m drinking when I know I’m not”. He said that when he used to drink, for most of that period he would sometimes consume 4.5 litres of bourbon whisky a day. Dr Elliott stated: “He did not smell of alcohol and did not appear acutely intoxicated, although I suspected he was using his sunglasses to hide the condition of his eyes”.

12. [45]

    As to his conviction for driving with the presence of methylamphetamine, the defendant said it was the result of him being exposed to passive inhalation of methylamphetamine being smoked by family members. He denied any history of opiate use, even though he had a reported history of using oxycontin.

13. [46]

    Dr Elliott asked the defendant about his driver’s licence, noting:

14. [47]

    The defendant told Dr Elliott that he was living alone and was not presently in a relationship.

15. [48]

    The defendant terminated the assessment before Dr Elliott was able to ask him about his criminal history or his psychosexual history. Dr Elliott wrote: “I suspected that he appeared to recognise that the interview was headed in this direction”.

16. [49]

    Dr Elliott stated:

17. [50]

    Dr Elliott diagnosed the defendant as having a mild neurocognitive disorder, which is “likely multifactorial in origin with the key contributing factors being a deprived educational experience and his years of severe alcohol abuse”. He also satisfied the criteria for a severe Alcohol Use Disorder and a mild Cannabis Use Disorder.

18. [51]

    Dr Elliott noted that on the application of the HCR-20 Version 3 test, the defendant had a high loading of historical factors for violence:

19. [52]

    As to likely risk scenarios and factors that may elevate risk, Dr Elliott stated:

20. [53]

    Although Dr Elliott was of the opinion that the defendant poses “a risk of serious harm to others” if he ceases to be a forensic patient, he also stated: “I am not convinced it rises to the level of ‘unacceptable risk’ as required by the Act”. He referred to the defendant’s relatively minor criminal history for non-sexual violent offending and concluded that a serious injury that results from an assault of a partner would likely be “during an episode of alcohol fuelled domestic violence, albeit without him having intent of inflicting grievous bodily harm or worse”. He did not consider that the defendant posed a risk of serious sexual reoffending as required by the phrase, “unacceptable risk”. His opinion was strengthened by the defendant’s score on the STATIC-99R, that placed the defendant in the average risk group for sexual reoffending.

21. [54]

    Dr Elliott thought the primary protective benefit from an extension order would be the pressure placed upon him to be alcohol and drug-free by random testing, although even that would likely not avoid an act of serious harm in a domestic violence context: “the mechanism of breaching him may be too protracted to intervene early enough.”

22. [55]

    Dr Elliott saw little point in mandatory alcohol and other drug (AOD) rehabilitation programs in view of the defendant’s hostility to them. He did not think there was a less-restrictive means of containing the defendant’s risk. He did not have a mental illness and therefore did not qualify for a Community Treatment Order. A Guardianship Order or Financial Management Order would not block his access to alcohol and drugs and only further antagonise him.

23. [56]

    Dr Elliott saw considerable merit in the defendant continuing to be a recipient of NDIS support and doubted that the defendant would terminate it if he was no longer a forensic patient, in spite of his insistence that he disliked it:

24. [57]

    Dr Youssef was one of the two Court-appointed forensic experts for the 2024 final hearing, producing a report dated 11 July 2024. In her current report, she referred extensively to her earlier report, partly because there was little or no change in the history or her opinions since then.

25. [58]

    This assessment was via AVL over about two and a half hours. The defendant’s attitude to his forensic patient status was similar to how he presented to Dr Elliott:

26. [59]

    As to his personal history, the defendant recalled his six previous partners. Dr Youssef noted:

27. [60]

    The defendant told Dr Youssef he has been in a relationship with a woman he met through one of his sisters since his release from prison. Dr Youssef noted:

28. [61]

    The defendant said he had about 30 children, although Dr Youssef noted file reports that he had between 15 and 17 children. He described a difficult relationship with his family. He felt rejected, abandoned, disrespected and victimised by them:

29. [62]

    He reported that some of his children used methamphetamine and that he had been successful in keeping them off it over the previous two months. One of his sons who had been using methamphetamine had recently stabbed him, over a money issue. Dr Youssef wrote:

30. [63]

    The defendant maintained with Dr Youssef as well that he believed he did not require assistance through the NDIS:

31. [64]

    As to the defendant’s alcohol consumption, Dr Youssef noted:

32. [65]

    The defendant confirmed his current use of cannabis, saying he used it daily because “it assists him with his stress as well as his physical aches and pain from both his arthritis as well as the beatings he endures from his family”. He denied using other illicit substances, explaining the January 2025 offence came about because he was in a room where one of his children was smoking methamphetamine.

33. [66]

    The defendant did not think he required assistance in the form of programs, “though [he] said he would sign up for any program that he had to”. He did not trust that others could be there for him:

34. [67]

    Dr Youssef noted that, following the Centrecare program’s rejection of the defendant’s participation in October 2024, the defendant did engage with counselling through the Salvation Army, although no information was available on it. As to the defendant’s participation in treatment otherwise, Dr Youssef noted:

35. [68]

    Dr Youssef summarised the defendant’s living situation since his release back into the community on 8 November 2023, living with his mother:

36. [69]

    I note that that aspect of the history is at odds with his driving history in 2025, driving while suspended and, in August, driving while disqualified. Dr Youssef continued:

37. [70]

    Dr Youssef considered that the defendant met the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorder – 5th Edition Text Revision (DSM-5-TR) for the following conditions: Alcohol-Induced Mild Neurocognitive Disorder (NCD; persistent) and Alcohol Use Disorder (severe). In addition, he also met the criteria for Cannabis Use Disorders (moderate). An assessment of his cognitive functioning in 2024, using a Wechsler Adult Intelligence Scale (WAIS-IV), found his overall intellectual abilities to be in the ‘Extremely Low’ range, indicating ongoing severe impairment of intellectual capacities. He did not have a “mental illness” and is not a “mentally ill person” as defined in the Mental Health Act.

38. [71]

    Dr Youssef administered various assessment tools as a partial basis for her opinion as to the defendant’s level of risk of causing serious harm, noting that there are unique challenges and considerations when the subject has a cognitive impairment or a mental health condition. Dr Youssef administered the STATC-99 which by itself, unsurprisingly, yielded the same result as it did for Dr Elliott, namely, that the defendant was in the average risk category for sexual recidivism. The STABLE-2007 is intended to identify stable dynamic risk factors for sexual reoffending, which placed him in the above average category. Taken together, they may produce a combined score which, in the defendant’s case, placed him in the “above average” category of sexual reoffending.

39. [72]

    The Risk of Sexual Violence Protocol (RSVP-V2) includes a total of 23 static and dynamic factors grouped into two primary domains: “Nature of Sexual Violence”, which was not relevant to the defendant, and “Perpetrator Characteristics”. The Perpetrator Characteristics are divided into four not mutually exclusive sub-domains: ‘Psychological Adjustment’, ‘Mental Health’, ‘Social Adjustment’, and ‘Manageability’. Dr Youssef considered the defendant’s profile through these four sub-domains.

40. [73]

    Dr Youssef administered a test that is intended to assess the risk of recidivism in family violence offenders, known as the Ontario Domestic Assault Risk Assessment (ODARA). The defendant scored in the highest category for risk of reoffending. Dr Youssef administered other tests, which I do not propose to summarise. The Spousal Assault Risk Assessment Guide, Version 3 (SARA-V3) is designed to assess risk of IPV and to identify risk strategies. It yielded a score that was consistent with his score on the ODARA, namely, his risk is a “High” priority for IPV specific treatment, his risk for physical harm is considered “Moderate-High” and his imminence of violence is considered “Moderate”. The Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version (SAPROF-SO) is intended to provide a structured way for clinicians to assess hypothesised protective factors alongside commonly used sexual recidivism assessment tools, as I understand it, by examining whether some protective factors may be more mitigatory of risk than others.

41. [74]

    In summary, Dr Youssef concluded that the defendant’s level of risk for sexual offending was “Average” to “Above average”, and his risk for IPV was “High”. Dr Youssef identified potential risk scenarios, mindful that “risk assessments, including scenario planning, involve inherent uncertainties, and predictions about the severity of a future sexual or violent reoffence cannot be guaranteed”:

42. [75]

    Dr Youssef repeated her opinion from her 2024 report as to case formulation:

43. [76]

    Dr Youssef was of the opinion that the risk posed by the defendant could not be adequately managed by a Guardianship or a Financial Management Order and he did not qualify for a Community Treatment Order. Ongoing NDIS support could be helpful, but if the defendant is not a forensic patient, he could terminate it. There is a high likelihood that he would terminate the NDIS if an extension order was not made.

44. [77]

    Dr Youssef recommended that the order be extended for a period of 12 months:

45. [78]

    In oral evidence, Dr Elliott sought to encapsulate the difference between his opinion and that of Dr Youssef on the issue of whether the defendant would cancel his NDIS-funded services, if he was no longer a forensic patient:

46. [79]

    Drs Elliott and Youssef also disagreed as to whether the defendant had the cognitive capacity to ensure that he was not alcohol-affected at scheduled breathalyser tests, to which he was then subject. Dr Youssef thought he was, whereas Dr Elliott thought he was not.

The parties’ submissions

1. [80]

   The difference between the positions of the parties in their final address could be succinctly stated as turning on the differences in the opinions of Dr Elliott, which was the position of the defendant, and the opinion of Dr Youssef, with which the plaintiff aligned. The defendant submitted that Dr Elliott’s opinion carried more weight because of his familiarity over decades with individuals such as the defendant, who are Aboriginal and live on the social fringes.

Consideration

1. [81]

   At the time of the 2024 final hearing, there were positive indicators for the defendant’s rehabilitation, at least to a point that he did not pose an unacceptable risk of causing serious harm. As noted by Dhanji J and also by Dr Youssef in her report, the defendant’s release from detention to reside with his mother proved to be unsuitable, in part because of the attitude of family members towards his commitment to abstinence. The defendant moved into public housing a matter of days before the 2024 final hearing.

2. [82]

   Dhanji J noted:

3. [83]

   Although the defendant has now been residing in a different location for about 16 months, it has proved to be no safer or less destabilising for him. There has been little relief from his family’s belligerence, rejection of him and their confronting alcohol and drug consumption. The defendant now proposes to move again, this time to a different area. As well, he has had a difficult relationship with his earlier NDIS service provider and while his relationship with his current services provider is positive, he has expressed a strong desire to terminate NDIS services altogether if an extension order is not made.

4. [84]

   Another promising development at the time of the 2024 final hearing was the availability of culturally appropriate counselling and treatment for underlying criminogenic factors. His Honour expressed concern, at [35], at the lack of counselling opportunities that had been provided to the defendant:

5. [85]

   His Honour found as a fact that the defendant had not consumed alcohol since his release from prison and noted that he had been accepted by the Tamworth Aboriginal Medical Service to access their alcohol, tobacco and other drugs support service, and by the Centrecare program, which was intended for men who use abusive and controlling behaviour towards women. The defendant had attended the first session in January 2024. His Honour concluded, at [53]-[54]:

6. [86]

   As noted above, the defendant was ultimately rejected by the men’s behavioural change program because of his denial of the index offence and resistance to treatment and has steadfastly maintained to Dr Dayalan in December 2024 and Drs Elliott and Youssef in August 2025 that he believes he does not need treatment for his issues. As well, there is some evidence that the defendant had consumed alcohol before his assessment by Dr Dayalan on 16 December 2024 and had consumed methamphetamine, some of which remained in his blood, leading to the January 2025 offence.

7. [87]

   There is considerable agreement between the opinions of Drs Dayalan, Elliott and Youssef to the effect that the defendant’s risk of causing serious harm by committing an offence of serious violence is dependent upon whether he is able to maintain sobriety from alcohol and other substances; in particular, in the opinions of Drs Elliott and Youssef, methamphetamine. All three forensic experts note the defendant’s need for assistance in maintaining sobriety by way of therapeutic intervention.

8. [88]

   To the extent that Dr Elliott’s view differs from that of Drs Dayalan and Youssef, it is as to whether, firstly, an insistence upon therapy would be pointless and counterproductive in view of the defendant’s attitude to it; secondly, whether serious harm would likely be intended by the defendant’s deliberate act of violence (for example, the defendant intending injury confined to a punch but causing the victim to fall and hit their head, occasioning a very serious injury); and thirdly, whether the defendant would cancel his NDIS-funded services if he was no longer subject to a forensic patient order.

9. [89]

   I accept the defendant’s submission that Dr Elliott’s opinion warrants particular weight in view of his long experience within and outside the prison system with patients facing the issues that the defendant faces.

10. [90]

    A review of some aspects of the defendant’s criminal offending over his life, to which I now turn, provides some force to the opinion of all three experts that the defendant’s primary criminogenic factor is his consumption of alcohol, but also to Dr Elliot’s contention that the defendant would not comply with treatment conditions.

11. [91]

    As noted, the defendant’s first matter involving violence was an assault in 1995, when he was aged 26. The police facts were that the defendant and his “de facto” drank heavily one night and had an argument in the early hours of the following morning: “the defendant punched the victim to the face and kicked her on the leg … the defendant admitted to punching the victim to the left side of her face”.

12. [92]

    In February 1998, the defendant received a three-year recognizance order for a break, enter and steal. A condition of the 1998 good behaviour bond was that he “enter a residential rehabilitation programme as may be arranged”. In a subsequent breach report dated 5 September 2000, the author, who was a Probation and Parole officer, noted:

13. [93]

    And later:

14. [94]

    In August 1999, he was convicted in absentia for assault and contravening an ADVO. The prosecutor informed the Court that the assault was a threat to stab the defendant’s partner.

15. [95]

    In May 2000, the defendant received a good behaviour bond for 18 months for the offences of driving while disqualified, failing to appear and goods in custody.

16. [96]

    On 20 December 2000, the defendant was convicted of assault and failing to quit premises, both committed on 26 July 2000. For the assault he received a 12 month good behaviour bond, conditional on regularly attending Alcoholics Anonymous. A subsequent breach report noted that the defendant was unable to provide any confirmation with having attended Alcoholics Anonymous meetings.

17. [97]

    In August 2001, the defendant was sentenced in the Local Court for three offences: larceny, intimidation and assault. For each offence he received wholly concurrent sentences to imprisonment for four months.

18. [98]

    The police facts on the assault were that on the morning of 15 June 2001, the defendant’s partner had arrived at their home to find the defendant intoxicated. He accused her of sleeping with other men and punched her four times to her face. She contacted police who attended their residence 30 minutes later. The defendant decamped and was arrested shortly afterwards, smelling “strongly of intoxicating liquor”. It was noted that the defendant had been bailed on 23 May 2001 with a condition that he not consume intoxicating liquor.

19. [99]

    The defendant appealed the sentence to the District Court. On 3 October 2001, he came before Black QC DCJ, who accepted evidence to the effect that the defendant wished to finally address his problem of alcohol consumption by participating in a residential rehabilitation program at Bennelong Haven. His Honour varied the sentence of imprisonment by imposing a bond for a period of 12 months with conditions that included that he attend the Bennelong Haven program within 14 days of the date of his appeal, and obey the reasonable directions of the Probation and Parole Service.

20. [100]

    The defendant did not attend Bennelong Haven. He was breached and called up, but failed to appear. On 22 April 2002, he received a further bond for a period of 12 months with a condition to undertake anger management counselling.

21. [101]

    On 5 March 2003, the defendant was convicted of destroying or damaging property, for which he received a bond for a period of 12 months, conditional upon him complying with reasonable directions of the Probation Service concerning, amongst other matters, AOD rehabilitation. The property was that of his partner. He was drunk and broke a window with a shoe when she asked him to “Go to bed or go”.

22. [102]

    In 2006, the defendant was convicted of breaching an ADVO by approaching his partner while intoxicated and threatening to kill her. He received a two year bond with supervision.

23. [103]

    In 2008, the defendant was convicted of the offence of assault occasioning actual bodily harm, for which he received a suspended sentence of imprisonment for 15 months, conditional upon him complying with reasonable directions of the probation service concerning, amongst other matters, drug and alcohol rehabilitation and continuing to attend named Indigenous agencies for counselling. The police facts were to the effect that around 11.50am on the day of the incident, police were driving along a public street and observed the defendant to walk to a taxi. His partner exited the driver’s seat and he punched her to her face with a closed fist, causing her to stumble backwards and fall to the ground. Police stopped and arrested the defendant. His partner informed police that in the early hours of that morning the defendant had repeatedly punched her to the face and “grabbed her by the throat with his hands causing pain and bruising to her throat and neck area”. That was the assault that was the subject of the charge.

24. [104]

    In 2014, the defendant received a 12 month good behaviour bond for assault, with a condition to attend AOD counselling.

25. [105]

    On 23 February 2015, the defendant was convicted of common assault in a domestic violence context committed on August 2014. He received a bond for a period of three years, subject to supervision. The essence of the facts was that he grabbed his wife by her throat and forced her against a wall. According to a transcript of the Court sentence hearing, the defendants’ legal representative informed the Court that the defendant “realises he does have an issue with alcohol”.

26. [106]

    Two months and one week after that offence, the defendant again committed an assault in a domestic violence context and received another 12 month good behaviour bond.

27. [107]

    On 21 June 2018, the defendant was convicted of intimidation in a domestic violence context, for which he received a two year good behaviour bond conditional upon him attending counselling for, amongst other matters, drug or alcohol rehabilitation. The facts were to the effect that while “highly intoxicated” he threatened serious violence against a woman who was the carer of a six-year old daughter of the defendant.

28. [108]

    Although this is not a comprehensive summary of the defendant’s criminal record, it suffices to place the defendant’s current situation in the context of his life-long struggles with AOD abuse. It underscores the strength of likely scenarios of future offending as opined by Drs Elliott and Youssef, which are particularly troubling in view of the defendant’s current relationship with a partner who drinks heavily. This material includes repeated instances of insight by the defendant into his alcohol issue, commitments by him to accept outside help to tackle it and usually (but not always) failing to follow through with the counselling and therapy that has repeatedly been made available to him.

29. [109]

    I made the following findings of fact:

    1. (1)

       I am satisfied that if the defendant resumes consuming alcohol and/or consumes methamphetamine, he will engage in acts of violence with others while under the influence of those substances, that would cause serious psychological and emotional harm and have the potential to cause (likely unintended) serious physical harm or death.

    2. (2)

       I am not satisfied that the defendant has not used alcohol or methamphetamine over the duration of his most recently extended order. However, I do find that he has built on his earlier significant period of sobriety with an impressive further effort.

    3. (3)

       It is likely that the defendant will resist attempts to engage him with AOD treatment if his forensic patient order is extended.

    4. (4)

       The NDIS and other services provided directly and indirectly through the defendant’s extension order and the Tribunal’s conditions (such as random AOD testing) are necessary in order to both assist and constrain the defendant in respect of his AOD issues and to achieve pro-social objectives such as changing his place of residence.

    5. (5)

       With due respect to Dr Elliott, I consider it is likely that the defendant would follow through with his stated intention to cancel his NDIS-funded services if he is not a forensic patient.

30. [110]

    For these reasons, I was satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk could not be managed by other less restrictive means.

31. [111]

    The type of harm that the defendant poses is non-sexual violence. I accept the opinions of the forensic experts that the risk of the defendant committing an offence of sexual violence does not constitute an unacceptable level.

32. [112]

    The defendant’s record of relatively minor assaults, his partial success in remaining sober and his resistance to AOD treatment activate consideration of exercising the discretion to not extend the order. I determined not to do so, because in my view, the practical impact of the Tribunal’s supervision will significantly reduce the defendant’s level of risk by ensuring that he maintains support services and does not relapse.

Order

1. [113]

   Accordingly, I made the following order on 14 November 2025: